Citation Nr: 9811779
Decision Date: 04/15/98 Archive Date: 05/06/98
DOCKET NO. 97-34 223 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to an increased evaluation for residuals of a
shell fragment wound of the right hand, currently evaluated
as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Michelle D. Doses
INTRODUCTION
The veteran had active service from June 1944 to June 1946.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a July 1997 decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Louisville,
Kentucky.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has had pain from his scars, he
has trouble picking up small objects, and it is hard for him
to make a fist. He asserts that there is evidence of
degenerative arthritis. He further asserts that his pain is
constant. Finally, he contends that the current rating
assigned does not reflect the severity, chronicity, or
functional impairment he has on an ongoing basis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the assignment of an increased disability
evaluation for residuals of a shell fragment wound of the
right hand.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained.
2. The residuals of the veteran’s shell fragment wound of
the right hand presently include mild decreased sensation in
the index and middle fingers and associated decreased grip
strength; loss of function due to pain has not been
demonstrated.
CONCLUSION OF LAW
The schedular criteria for a disability evaluation in excess
of 10 percent for residuals of a shell fragment wound of the
right hand have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.20, 4.124a, and
Diagnostic Code 8599-8515 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board notes that the veteran has
presented a well-grounded claim for an increased evaluation
within the meaning of 38 U.S.C.A. § 5107(a). That is, the
veteran’s claim of possible deterioration with respect to
this condition since the last final decision on the merits is
at least plausible. Proscelle v. Derwinski, 2 Vet. App. 629,
632 (1992). The Board is also satisfied that all relevant
facts pertinent to this issue have been properly developed
and that no further assistance to the veteran is required to
comply with the duty to assist him as mandated by law.
38 U.S.C.A. § 5107(a).
In accordance with 38 C.F.R. §§ 4.1 and 4.2, the Board has
reviewed all the evidence of record pertaining to the history
of the veteran’s residuals of a shell fragment wound of the
right hand and has found nothing in the historical record
that would lead to a conclusion that the current evidence of
record is not adequate for rating purposes. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). Moreover, the Board is of
the opinion that this case presents no evidentiary
considerations that would warrant an exposition of remote
clinical histories and findings pertaining to the disability
at issue. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Factual Background
A note from the commanding captain dated in March 1945
discloses that the veteran received a wound on the knuckle of
his first finger of his right hand. Upon receiving immediate
treatment, he returned to his usual duties. He was getting
along fine. On separation from service, the veteran was
found to have no musculoskeletal defects. His DD Form 214
shows that he received the Purple Heart.
A VA examination report dated in September 1981 reflects that
the veteran reported arthritis in his hands since 1979. On
examination, the hands revealed some finding suggestive of
osteoarthritis. No specific muscle weakness was noted at the
time. It was noted that the veteran had wounds of his hands
in Germany in 1945 due to shrapnel injury. By rating action
dated in October 1981, service connection for residuals of a
shell fragment wound of the right hand was granted, and a
noncompensable disability evaluation was assigned, effective
from May 14, 1981.
A VA examination report dated in October 1982 reflects that
the veteran was found to have a small shell fragment wound of
the right hand with 2 scars. A treatment note from James M.
Donley, M.D., dated in July 1983 shows that the veteran tried
to relate all of his shoulder problems to his shrapnel wound
of the hand. It was noted that x-ray examination revealed
only 2 pieces of very small fragments of metal in the
veteran’s thumb. Dr. Donley saw no other shrapnel and
nothing of any significance for which the veteran should have
any disability. There were no other problems inherent with
the hand from shrapnel injury. A treatment note from Dr.
Donley dated in February 1987 discloses that the veteran
complained of numbness in the right hand. He was found to
have carpal tunnel syndrome bilaterally.
A VA examination report dated in April 1991 reflects that the
veteran reported hand trouble since 1945 and the older he got
the more it bothered him. On examination, there was no scar
to show the shell fragment wound. He had no deformity or
limitation. X–ray examination revealed 2 small metallic
foreign bodies in the lateral aspect of the right thumb. No
bony abnormality was identified. The diagnosis was shell
fragment wound to the right hand by history.
A treatment note from Dr. Donley dated in February 1994 shows
that the veteran continued to complain of problems with his
right hand. From 1991 to 1994, the veteran showed
progressive changes, small metallic fragments in the thumb at
the radial ulnar side at the metacarpal phalangeal joint and
the web space, and progressive changes of degenerative
arthritis.
In a letter dated in February 1994, Sherry Baird, R.N.,
stated that, in the years since the veteran sustained his
wound, he had had continual trouble with his hand. The right
hand swelled and got very sore. She had seen the veteran’s
worsening symptoms over the past eight years. He was often
unable to perform activities of daily living. Photographs
with no visible symptoms were enclosed.
A VA examination report dated in April 1994 reflects that the
veteran reported that he had an operative procedure to remove
shrapnel, however, there was no tendon damage and no bony
damage. He subsequently had three surgeries for emergent
pieces of shrapnel. He also reported that his hand would
swell and he had a decreased sensation in his fingers. On
examination, he had good grip, strength, and dexterity in
both hands. He had no obvious scars or contractures, and
there was no defect or swelling. The diagnoses included
status post shrapnel injury to the right hand, retained
metallic fragments in soft tissue of lateral aspect of right
thumb, and retained shrapnel in mid-shaft second metacarpal,
right hand. It was noted that the veteran had normal
sensation to both left and right hand and all fingers. The
only remarkable finding on physical examination was some
inflammation of the first and second proximal metacarpal
phalangeal joints on his right hand. His physical
examination was otherwise without evidence of active disease.
This was suggestive of an inflammatory synovitis.
A VA examination report dated in January 1997 reflects that
the veteran complained of numbness of the index and middle
finger on his right hand, difficulty buttoning his clothes,
and constant pain in his right hand. On examination, his
hand was warm to touch. There was decreased vibratory
sensation in his index and little fingers on his right hand.
There was no pain elicited when pushing on his hand and no
pain noted on his wrist. Dorsiflexion was to 60 degrees,
extension to 0 degrees, palmar flexion to 70 degrees, radial
deviation to 10 degrees, and ulnar deviation to 25 degrees.
There was only slight edema noted in his right hand. There
was a scar that extended from the palm to the wrist and an
old surgery site. All the fingers closed when making a grip.
His right grip was slightly less than his left grip. When he
touched his thumb with all his fingers at the tip, his little
finger was six millimeters from his thumb. When he grasped
objects, he had decreased strength in his right hand as
compared with his left hand; however, he did not appear to
have any problems in picking up objects or grasping objects.
The diagnosis was status post shrapnel or shell fragment in
his right hand with mild decreased vibratory sensation in his
index and middle finger.
Analysis
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4,
Schedule for Rating Disabilities (rating schedule). Where
entitlement to compensation has already been established and
an increase in the assigned evaluation is at issue, it is the
present level of disability that is of primary concern.
Francisco, 7 Vet. App. at 58. Although the recorded history
of a particular disability should be reviewed in order to
make an accurate assessment under the applicable criteria,
the regulations do not give past medical reports precedence
over current findings. Id. Where there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7. When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology, are closely analogous.
38 C.F.R. § 4.20.
A 10 percent evaluation for residuals of a shell fragment
wound of the right hand has been in effect since March 19,
1993 pursuant to Diagnostic Code 5299-5225. Diagnostic Code
5225 provides a 10 percent evaluation for favorable and
unfavorable ankylosis of the index finger. Limitation of
motion of a finger of less than 1 inch in either direction is
not considered disabling. 38 C.F.R. § 4.71a, Diagnostic Code
5223, Note (a). Here, no limitation of motion of the affected
fingers has been shown. The disability at issue also may be
rated under Diagnostic Code 8515 as the current
symptomatology involves loss of sensation involving the index
and middle fingers. Diagnostic Code 8515 provides for a 20
percent evaluation for moderate incomplete paralysis
involving the median nerve and a 10 percent evaluation for
mild incomplete paralysis involving the median nerve.
On current VA examination, the veteran complained of numbness
of the index and middle finger on his right hand, difficulty
buttoning his clothes, and constant pain in his right hand.
It was found that he had mild decreased vibratory sensation
in his index and little fingers on his right hand, and no
pain when his hand was pushed. While the veteran stated that
he has trouble picking up small objects, on examination, it
was noted that he did not appear to have any problems in
picking up objects or grasping objects. It was noted,
however that, when he grasped objects, he had decreased
strength in his right hand as compared with his left hand.
While he also stated that it is hard for him to make a fist,
on examination, all the fingers closed when making a grip.
While the veteran has contended that he has degenerative
arthritis of the right hand as a result of his gunshot wound,
and consequently, a separate evaluation is warranted for
arthritis, the medical evidence of record does not support
his contention. In fact, in 1983, his private physician
found that there were no other problems inherent with the
hand from shrapnel injury and the veteran was found to have
carpal tunnel syndrome bilaterally. While the September 1981
VA examination report revealed some finding suggestive of
osteoarthritis and the veteran’s private physician noted
that, from 1991 to 1994, the veteran showed progressive
changes, small metallic fragments in the thumb at the radial
ulnar side at the metacarpal phalangeal joint and the web
space, and progressive changes of degenerative arthritis,
there is no suggestion that the arthritis is a result of the
shrapnel wound.
After reviewing the history of the veteran’s shell fragment
wound of the right hand as well as the current symptoms as
reported by the veteran and the findings made on several
examinations, the Board concludes that the residuals of a
shell fragment wound of the right hand are no more than mild
in severity. Thus, a 10 percent evaluation, the current
evaluation assigned, is appropriate. As the residuals of his
shell fragment wound of the right hand are not commensurate
with moderate incomplete paralysis involving the median
nerve, the criteria for a 30 percent evaluation, the next
higher evaluation under Diagnostic Code 8515, have not been
met or approximated. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1,
4.2, 4.7, 4.20, 4.124a, and Diagnostic Code 8599-8515 (1997).
The evidence is not so evenly balanced that there is doubt as
to any material issue. 38 U.S.C.A. § 5107(b).
ORDER
An increased evaluation for residuals of a shell fragment
wound of the right hand is denied.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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